Mandatory victim surcharges violate Charter rights

For many years, there has been a victim fine surcharge on the books, established with the intent to help fund victim services such as counseling. However, a judge could waive the surcharge if the offender could not pay the fine.

In 2013, the Harper government amended the language of the Criminal Code to make this victim surcharge mandatory through the Increasing Offenders' Accountability for Victims Act, which went into effect in October of that year. Under the act, there is no longer a mechanism for judges to decline to impose the surcharge, regardless of the offender’s ability to pay it. The fine is $100 for summary convictions and $200 for indictable offences.

In August of last year, Bruce Barinecutt challenged the compulsory nature of the victim surcharge.

Evidence before the court indicated that Mr. Barinecitt suffers from HIV, hepatitis C, and a back injury resulting from a gunshot wound in 2002. His early life was spent in foster care. The judge found he experienced a cognitive impairment as a result of fetal alcohol syndrome. At the time of his sentencing he was living in a homeless shelter.

Mr. Barinecutt’s lawyer, David Fai, argued that for Mr. Barinecutt, the compulsory fine amounted to a perpetual sentence, because he would never be able to pay, and that it violated his Charter protection against cruel and unusual punishment set out under section 12.

This past June, BC Provincial Court Judge Senniw found the victim surcharge violated Mr. Barinecutt’s section 7 and 12 Charter rights. Today she ruled that the violations were not justified under section 1 of the Charter, so she refused to apply the surcharge to the Mr. Barinecutt.

“If an offender has no ability to pay the surcharge, it is difficult to envision how it could promote accountability, let alone raise funds for victim services,” the Honourable Judge Senniw wrote in her decision.

“It is irrational to impose a mandatory payment on an individual with no prospect of payment, for whom attachment of government benefits would create a hardship, and where a government administration would expend time, effort and monies in an attempt to collect such a mandatory payment.”

Ontario judges have previously considered the victim surcharge in a line of cases. There is now some question about how Judge Senniw’s decision applies to other cases that are heard in BC Provincial Court, although it is foreseeable that they may stop imposing the fine.